The Dutch government has given you the opportunity to present your views on an intended disclosure of information based on the Open Government Act (Wet open overheid). What does the Open Government Act entail? What does the procedure for expressing views involve? How can you oppose disclosure? We answer these questions in this blog.
The Open Government Act (Wet open overheid – Woo) contains rules for the Dutch government on disclosure of information. It covers information in the government’s possession, for instance in the form of reports, e-mails, draft documents and text messages. The Woo aims to create a transparent government, which contributes to good democratic governance.
Under the Woo, anyone may request the government to disclose information. The government is legally obliged to disclose this information unless one of the grounds for exception in the Woo applies. These grounds for exception are listed in Article 5.1 and Article 5.2 of the Woo. ‘Disclosure’ means making information known to the public, for example by publishing it on a website. The municipality of Amsterdam, for instance, publishes Woo decisions on its website.
When the government receives the ‘Woo request’, employees search for the requested information in archives and databases based on the Woo request. They then apply the grounds for exception to the information by blacking out sections while stating the reasons. The government eventually decides on the Woo request. It is explained in the decision what information was found and which grounds for exception were applied. In addition, the information found is published. In principle, the procedure from Woo request to Woo decision takes no longer than four to six weeks. In practice, this time limit is often not met.
If the government wishes to disclose information about you in response to a Woo request, it is obliged to give you the opportunity to express your views on that disclosure within a certain period. You will then receive a draft Woo decision and the documents containing the information from which it is apparent what information the government does and does not intend to disclose.
In your response, you may then express your views on the intention to disclose information. If you wish to exclude certain information from the disclosure, you must justify why one of the grounds for exception should be applied. The Woo sets out two types of grounds for exception:
- If an absolute ground for exception applies, the information may not be disclosed. Information may not be disclosed, for instance, insofar as it concerns:
- business and manufacturing data that has been confidentially disclosed to the government;
- personal data within the meaning of Article 3.1 and Article 3.2 of the General Data Protection Regulation Implementation Act (the GDPR Implementation Act); or
- identification numbers within the meaning of Article 46 of the GDPR Implementation Act.
- If a relative ground for exception applies, the information may not be disclosed, provided that the interest protected by that ground for exception outweighs the general interest in disclosure. Unlike in the case of absolute grounds for exception, the interests involved must therefore be weighed. Information may not be disclosed, for instance, insofar as the interest involved does not outweigh:
- the respect of privacy;
- the protection of sensitive competitive business and manufacturing information that is not covered by the absolute grounds for exception;
- the security of persons and companies and the prevention of sabotage; or
- the disproportionate prejudice to an interest not listed in the law.
If the information constitutes ‘environmental information’ or ‘environmental information relating to emissions into the environment’, some grounds for exception are applied differently or not at all. If the information is older than five years, the passage of time should be considered when weighing the interests involved.
It is advisable to study the draft Woo decision and related documents carefully, as the human element involved in applying grounds for exceptions and in blacking out information make that work susceptible to mistakes. In a ruling of 15 July 2020, for instance, the Administrative Law Division of the Council of State found that a civil servant had provided a document in which certain information had inadvertently not been blacked out. (ECLI:NL:RVS:2020:1647).
The law does not prescribe how long the period for expressing views should be. In practice, that period varies from a few days to a few weeks, but longer periods are also possible. The period must be long enough to give you the opportunity to carefully study the intention to disclose information. The government may be asked to extend the viewing period. The government’s decision period is suspended during the period for expressing views.
Objection/appeal and preliminary relief
After the views have been submitted, the government resumes the decision-making procedure, in which those views are taken into account. The government takes the Woo decision, to which you may object. The government will decide on the objection, after which you may appeal that decision before the administrative court. Objections or appeals must always be lodged within six weeks after the announcement of the decision.
In principle, the information is disclosed at the same time as the Woo decision. If you object to disclosure, however, the information will be made public two weeks after the Woo decision is announced. This gives the interested party the opportunity to request the preliminary relief judge to suspend the Woo decision during the objection and/or appeal procedure against the Woo decision. This prevents the information from being made public during these proceedings. In case law, we see that a request to suspend a Woo decision is often granted on the grounds that disclosure would have irreversible consequences, rendering the objection and appeal procedure meaningless.
Anticipate the Woo
It should be borne in mind that any information provided by citizens or companies to the Dutch government may at some point become subject to disclosure under the Woo. In general terms, we therefore recommend taking this into account in advance in your contact with the government, for instance by critically considering what information is provided, in what manner and possibly under what conditions. We will of course be pleased to help to devise solutions for specific cases.
Kluwer’s Tekst & Commentaar edition (in Dutch) has now been published. This edition gives you quick and expert answers to questions on the significance and application of the Woo.
This blog is also available in Dutch (click here).
This is a blog in the “FAQ” series. You can find an overview of all the blogs in this series here.
The blog post ‘FAQ: An Open Government Act request has been submitted that relates to me, now what?‘ is a blog post from Stibbeblog.nl.
All posts by Koen Giezeman
All posts by Dominique Diesfeldt